Bejarano-Martinez v. Garland
19-3551
| 2d Cir. | Apr 4, 2022Background:
- Petitioner Gladys Emilia Bejarano-Martinez, a Honduran national, sought asylum, withholding of removal, and CAT protection after alleged gang threats concerning her daughter.
- Immigration Judge denied relief (Feb. 26, 2018); the BIA affirmed (Oct. 1, 2019); petitioner appealed to the Second Circuit.
- Factual record: one incident of being followed and a single threatening phone call from a gang member; no past torture; she briefly relocated within Honduras without incident.
- Petitioner proposed the particular social group: “family members of young Honduran women who refuse to be a victim of violent sexual predation.”
- The agency found no past persecution, concluded the proposed group was not cognizable (lack of social distinction and independent existence), and denied CAT relief because torture was not more likely than not.
- The Second Circuit reviewed the IJ and BIA decisions and denied the petition for review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution | One following and a threatening call demonstrate past persecution | Incidents were isolated harassment and did not rise to persecution | No past persecution; incidents insufficient (mere harassment/unfulfilled threats) |
| Cognizability of proposed particular social group | Family members of girls resisting gang sexual predation are a distinct, immutable group | Evidence shows harm stems from ordinary criminal incentives; group lacks social distinction and independent existence | Proposed group not cognizable for asylum/withholding (no social distinction; defined by persecutory conduct) |
| CAT — likelihood of torture | Gang threats make torture more likely than not on return | No past torture; petitioner relocated safely; chain of events to torture is unlikely | CAT relief denied—petitioner failed to show torture more likely than not |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (reviewing agency decisions for completeness of record review)
- Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) (particular social group test: immutability, particularity, social distinction)
- Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408 (2d Cir. 2006) (distinguishing unfulfilled threats from persecution)
- Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332 (2d Cir. 2006) (harassment does not necessarily constitute persecution)
- Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (harm driven by criminal incentives weighs against finding persecution)
- Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999) (general crime or random violence not a basis for asylum)
- Savchuck v. Mukasey, 518 F.3d 119 (2d Cir. 2008) (CAT requires that all links in chain to torture be more likely than not)